Constantine and Constitutionalism
The ecclesial foundation of Western constitutionalism
This essay first appeared in Nicholas Aroney and Ian Leigh, eds., Christianity and Constitutionalism (Oxford 2022).
Histories of constitutionalism commonly ignore the late Roman empire, including the period of the empire’s Christianization. Writing in 1940, Charles Howard McIlwain, for example, discusses the influence of Justinian’s Institutes on the development of Western political institutions, arguing that the Roman concept of the populus as the source of law came to fruition in medieval political organization, more than in Renaissance absolutism. He recognizes that medieval Christendom played a significant role in the development of constitutional government, but his attention to the Christian empire is brief and superficial.1 In a 1999 survey of constitutionalism “from ancient Athens to today,” Scott Gordon refers to Constantine only once, in a reference to the spurious Donation of Constantine, and his narrative moves rapidly from a discussion of Roman government to the concept of “countervailence” in the Middle Ages.2
The reasons for this neglect are fairly obvious. Constitutionalism focuses on limiting state power. For Thomas Paine (1737-1809), the distinction between constitution and government is fundamental.3 Constitutions are antecedent to governments. They define the authority of governments and, importantly, the limits of that authority. Any exercise of power beyond the limits of the constitution is an exercise in power without right. When there is no prior constitution, then there is no legal recourse against the abuses of government. Without a constitution, “the will of the government has no check upon it, and that state is in fact a despotism.”4 Or, the only check on a government’s abuse of power is the sheer extralegal force of the opposition.
Imperial Rome had a constitution of sorts, unwritten and evolving, more similar to the British than the American constitutional tradition. Yet in the late empire, the word of the emperor was to be obeyed as law.5 Diocletian (244-311) reorganized the empire, diminishing the role of the Senate and adopting the title Dominus, which replaced Princeps. Since there were no checks on the emperor’s will besides the potential force of a rival, the late Roman empire was, on Paine’s definition, a despotism. It appears that this period makes no contribution to Western constitutionalism. The late empire rather represents the governmental form that constitutionalism overcomes.
I argue here that, contrary to expectation, the late empire, and the reign of Constantine in particular, are crucial to the development of constitutional systems. Without Constantine (c. 272-337, reigned 306-337), the Western tradition would not be a tradition of Christian political reflection. That much is obvious. What is not obvious is that Constantine’s conversion was crucial to the development of Western constitutional principles. Harold Berman famously pointed to the Gregorian Revolution and canon law as foundation stones for the Western legal tradition.6 To develop its own system of law, the church first needed to have liberty to survive without harassment, and without functioning as an arm of state authority. By the time of Gregory VII (pope from 1073-1085), of course, the Roman empire was long gone, and the church’s independence had been secured by virtue of historical accident. Centuries before, Constantine laid the foundation beneath the medieval substructure by granting legal recognition to the Christian church. Important as they were, medieval institutions depended on the achievements of the Christian empire.7
Constantine’s main contribution to constitutionalism was to recognize the Christian church as a legal entity. In the first part of this paper, I outline Lactantius’s theological argument for religious liberty and Constantine’s implementation of the Lactantian settlement. Lactantius (240-320), a rhetorician and a convert to Christianity, served as an advisor to Constantine and tutored the emperor’s son, Crispus. Whatever Constantine may have expected, legalizing the church was not merely recognition of another religious organization. As a purely sociological phenomenon, the church was unique in the ancient world, and, of course, the church claimed to be much more than a purely sociological phenomenon. She claimed to be the bearer of the meaning of human history, a holy and separate people that was a sign of a perfected community of the future. In recognizing the church, Constantine inaugurated a “migration of the holy,” a shift of the locus of sanctity from the prince to the church.8 Legalization of the church was a blow to the belief in “sacral kingship” that was common in ancient politics right up to the imperium of Diocletian. Practically, after Constantine, Christian emperors recognized the church’s leaders as spokesmen of God, to whom they were accountable. The fifth-century Gelasian theory of “two powers” was a Christianized form of the “separation of powers” as the church provided a “check and balance,” a real counterweight to imperial authority.
The Church and the Limits of State Authority
Conservative political thinkers often describe religious liberty as the “first freedom.”9 The most basic constitutional limit on government is the prohibition of government regulation of belief. Constantine’s key contribution to the history of constitutionalism was to secure this first freedom. Importantly, however, this was not merely a recognition of freedom of belief. Constantine legally recognized religious practice, specifically Christian practice.
The emperor’s church-state settlement reflects the thinking of the rhetor Lactantius,.10 Most of the apologists who defended the church in the early centuries advocated freedom of religion. For some, its use was tactical; freedom was the rhetoric of an oppressed minority. Lactantius, however, developed a theological argument for religious freedom.
Lactantius’ basic plea was for freedom of conscience. “Religion is the one field in which freedom has pitched her tent,” he wrote, “for religion is, first and foremost, a matter of free will, and no man can be forced under compulsion to adore what he has no will to adore.” At best, coercion will force people to make a “hypocritical show” of devotion, but force cannot make a man or woman will to worship. “If, then, anyone, out of fear of the tools of torture or vanquished by the torture itself, finally assents to the accursed pagan sacrifice, he never acts of his own free will, as compulsion was involved.” This is obvious from the fact that “as soon as opportunity offers and he recovers his freedom, he comes back to his God and begs with tears for forgiveness, doing penance for that which he did, not of his own free will, which he did not possess, but under the compulsion to which he submitted, and the Church will not withhold its forgiveness.” To the persecutors, he asked, “What good can you do, then, if you defile the body but cannot break the will?”11
Lactantius’s Divine Institutes was in part a response to Porphyry’s treatise against Christians and his treatise on Philosophy from Oracles. Porphyry believed that many roads led to the truth and bliss, including the way of Jesus. Yet this did not lead Porphyry to endorse a policy of toleration or religious freedom. Christians worshiped a man – a good man, to be sure, but only a man. Porphyry did not think the Roman empire could tolerate man-worshiping Christians indefinitely. Christianity’s humanism offended the gods, and needed to be stopped. Porphyry advocated “threatening the use of force against those who worshiped a human being” but at the same time “suggested that Christianity, by forsaking its worship of Jesus, might be made compatible with traditional worship and philosophy.”12 Christians should conform to Roman practice, by offering the prescribed sacrifices. They can believe whatever they like, so long as they do what the empire and its gods demand.
In responding to Porphyry, Lactantius argued for a fuller concept of religious freedom. It was not enough to allow religious belief. Rome should also protect the liberty of religious practice.
Lactantius cleverly drew on earlier strands of Roman political theology. Cicero had claimed that that God should be approached chastely and with piety, and Lactantius took this to mean that a true God does not want force used in religion, since a forced religion cannot be chaste and pious. Force pollutes rather than purifies religion: “if you wish to defend religion by bloodshed, and by tortures, and by guilt, it will no longer be defended, but will be polluted and profaned.”13
Lactantius also deployed traditional Roman ideals of freedom. As in the “Edict of Milan” promulgated by Constantine and Licinius, the keynote of Lactantius’s argument was libertas. Libertas pitches her tent in the area of religion, and religion expresses itself in voluntaria rather than in necessitas. Libertas had a long history in Roman political theology.14 Caesar and Octavian both posed as liberators of Rome, saviors who restored the glorious Roman past. Constantine’s imperial propaganda rang the same note. The triumphal arch completed in 315 granted him the title liberator urbis; other inscriptions in the capital acclaimed him restitutor libertatis publicae; and coins called him Restitutor Romae and Recuperatori urbis suae. Much the same was implied by the designation of Constantine as princeps, for the prince was the expected “suppressor of tyranny and the surety for freedom.”15 Though drawing on the imperial ideology of the past, Lactantius redefined tyranny as religious compulsion. Porphyry was a propagandist of tyranny, and Lactantius branded Diocletian, Maxentius, Licinius and the rest as enemies of libertas, as sub-Roman tyrants.
Perhaps inspired by Lactantius, Constantine forged a religious policy that seamlessly wove Christian and Roman themes together, and set the ideological foundations for a Christian, yet tolerant, Roman empire. The theory was expressed in the inscription on the statue of Constantine in Rome. He holds the sign of Christ, and the inscription reads: “in this sign of salvation I have restored to Rome, her senate, and her people, their ancient liberty and glory, delivering them from the lawless yoke of the tyrant.”16 The inscription could have adorned a statue of Octavian, who also claimed to fight for the libertas of the SPQR and who claimed to bring “salvation” for the people. But the Christian symbol changed everything: Rome’s libertas was now secure only in hoc signo – in this sign. And that meant that libertas was extended to the once-maligned Christian church.
As a Lactantian Christian emperor, Constantine tolerated paganism. That was the policy established in 313, and it was reiterated, more elaborately, after he defeated Licinius and assumed the sole imperium in 324. His “Edict to the Eastern Provinces,” issued in 324, was an unusually didactic decree. 17 Constantine attacked the irrationality of polytheism and defended monotheism. He recalled his father’s kindness to the church with fondness, and recounted the arrogance and stupidity of the persecuting emperors, “unsound in mind” and “more zealous of cruel than gentle measures.” They turned a period of peace and prosperity into a virtual civil war, and proved themselves more savage than the barbarians, among whom Christians found refuge. Like Lactantius he rejoiced that the persecutors “have experienced a miserable end, and are consigned to unceasing punishment in the depths of the lower world.” He insulted the Pythian oracle as “impious” and “delusive” and described Christianity as a “holy” religion.
Having exposed the error, the savagery, the political evils of paganism, just when the reader is ready for the hammer to fall, Constantine revealed the legal thrust of the edict. Insisting that his desire was “for the common good of the world and the advantage of all mankind, that your people should enjoy a life of peace and undisturbed concord,” he declared that “anyone who delight[s] in error, be made welcome to the same degree of peace and tranquility which they have who believe.” He did not want them to remain in their ignorance and error, but instead hoped that “this restoration of equal privileges to all will prevail to lead them into the straight path.” No one was to molest anyone else’s religion: “let every one do as his soul desires.” It was true that it is only possible to live a life of “holiness and purity” if one relies on the “holy laws” of “men of sound judgment.” But Constantine was willing to permit “those who will hold themselves aloof from us” to keep their “temples of lies.”
Constantine gave a Lactantian rationale for the policy: “The battle for deathlessness requires willing recruits. Coercion is of no avail.” There is a vast difference between pursuing immortality “voluntarily” and compelling “others to do so from the fear of punishment.” As it came to a close, the edict modulated from imperial pronouncement to prayer: “we” – he meant “we Christians” – “have the glorious edifice of your truth, which you have given us as our native home. We pray, however, that they too may receive the same blessing, and thus experience that heartfelt joy which unity of sentiment inspires.”18 Though framed as an official imperial document, from “Victor Constantinus, Maximus Augustus, to the people of the Eastern provinces,” it was more sermon than law. Constantine was less a theocrat imposing Christianity than Billy Graham issuing an altar call.
For most pagans, Constantine’s conversion was a “bearable evil,” and Constantine continued to have pagan philosophers in his court for years after his conversion.19 Pagans continued to serve in his administration and army, and he gave pagans high positions. A pagan helped him gather materials from around the East to adorn his great “Christian” city of Constantinople. His policies toward the army were particularly significant. Diocletian, Galerius, and Licinius had expelled Christians from the army because their presence offended the gods and might lead to defeat. Theodosius II later adapted this principle when he reversed, or revived, Diocletian’s policy and restricted the army to Christians. Wearing a helmet emblazoned with the first letters of “Christ” (chi-rho) and bearing his shield painted with a cross, Constantine kept pagan troops and led them in a monotheistic prayer that he knew would not violate their consciences.20
It was a remarkable balancing act. Elizabeth Digeser offers terminology and categories that help make sense of Constantine’s policies. She distinguishes forbearance from toleration, and tolerance from “concord,” and explains Constantine’s policy as a progression from tolerance to concord, Forbearance is a pragmatic policy, a necessary restraint, not guided by moral or political principle. Forbearance might change to persecution if the political conditions change. Rome persecuted the church sporadically between the first-century reign of Nero and the fourth-century imperium of Diocletian, but the periods of Roman acceptance of Christianity were periods of forbearance. Rome never acknowledged the church’s legal right to exist. Toleration is “disapproval or disagreement coupled with an unwillingness to take action against those viewed with disfavor in the interest of some moral or political principle.”21 This principle could arise, as for Lactantius, from a theory concerning the nature of religion, or, alternatively, from a theory about human nature, or about the limits of state power. By this definition, toleration does not involve an idea of the equality of all viewpoints but the opposite. Toleration assumes disapproval of certain religious expressions, but refrains for principled reasons from using state power to suppress the disapproved religion.
Beyond toleration, Digeser introduces the category of “concord,” which has the following two characteristics: “(1) its attitude of forbearance is dictated by some moral, political, or even religious principle and (2) it expects that by treating its dissenters with forbearance it is creating conditions under which they will ultimately change their behavior to conform to what the state accepts.”22 These three categories of religious policy build on one another: Toleration assumes forbearance, but is principled; concord assumes toleration, but in addition to basing forbearance on principle, it expects that the forbearance will have the ultimate outcome of unity if not complete uniformity.23
Digeser concludes that Constantine remained Lactantian, but gradually moved from a policy of toleration to one of concord, especially after his defeat of Licinius in 324. “Constantine’s newly disparaging attitude toward some elements of traditional cult,” she argues, “marked a move away from a policy of religious liberty – in which traditional cult was not criticized – toward a policy of concord, in which forbearance toward the temple cults was intended as a means of achieving ultimate religious unity.”24
Drawing from Lactantius, Constantine forged a policy of religious freedom, tilted in favor of Christianity. But what did he make free when he made the church free? What sort of entity did the emperor admit into Roman political life?